In passing two anti-terror laws – one to amend an existing law to give more ‘teeth’ to it and another to form an agency to deal with select crimes – the Indian government has demonstrated that it has no credible strategy to address one of the pressing problems of our times: terrorism.

The alacrity with which two laws – the Unlawful Activities (Prevention) Amendment Bill and National Investigation Agency Bill – were passed in both the houses of Parliament without facing substantial opposition from any quarters has shown that none from among the lawmakers is ready to learn from the past mistakes and that every one is looking for easy solutions.

The people of this country are no stranger to ‘tough’ laws. In its existence of more than six decades as a democracy, the country has seen the workings of several draconian laws imposed on it in the name of ‘internal security’ – the National Security Act, the Armed Forces (Special Powers) Act, the Terrorist and Disruptive Activities (Prevention) Act, the Prevention of Terrorism Act and many more.

India's main right-wing political group, the Bharatiya Janata Party, has been stridently demanding that POTA be re-enacted. Until recently, the UPA, the Left and other centrist parties stood firm in rejecting the demand despite the numerous terrorist attacks that India has suffered over the past few years.

“But now, the UPA has suddenly, and shamefully, caved in to the BJP's demand under the pressure of elite opinion,” says Jairus Banaji, a highly regarded Mumbai-based social scientist.

A new anti-terror agency

The National Investigation Agency (NIA) Act, seeks to establish a new agency to investigate acts of terrorism and other statutory offences.

Significantly, it excludes Right-wing terrorism, which has become a greater menace in India.

Unlike the existing Central Bureau of Investigation, which needs the consent of a state before investigating crimes there, the NIA will not need a state's concurrence. This is a serious infringement of the federal system, where law and order is a state subject.

The NIA Act also provides for special courts to try various offences. This too has drawn criticism from eminent lawyers such as Rajeev Dhavan, who argues that the potential misuse of this anti-terror legislation will now "come from both the states and the union, which can hijack the case".

Questions have also been raised over how the NIA is to be constituted. “Where is the blueprint?” asks Prakash Singh, former Uttar Pradesh Director General of Police, “Where are the officers going to come from? IPS officers of high calibre are rare to find even for the state police and the CBI.”

Over a third of all staff positions at the CBI are vacant — the agency says it just cannot find qualified applicants. The Intelligence Bureau (IB) — in charge of collecting internal intelligence — employs 28,000 personnel, of whom only 3,500 are field officers.

“The government cannot simply create bodies and give them powers and duties without accounting for who will carry them out,” says Singh.

Ajay Sahni, executive director of the Institute for Conflict Management, says: “The government has created special purpose agencies before: the National Disaster Management Authority, the National Security Council, and the Defence Intelligence Agency. They are nothing but non-functional organisations without funds and without trained officers.” Sahni says the NIA is a “misguided project that only has electoral resonance”.

Draconian provisions in the law

The other, the Unlawful Activities (Prevention) Amendment (UAPA) Act, radically changes procedures for trying those accused of terrorism, extends the periods of police custody and of detention without charges, denies bail to foreigners, and the reverses the burden of proof in many instances.

The UAPA Act contains a number of draconian clauses, and is also applicable to the entire country – unlike the Unlawful Activities Act, which was originally not extended to the strife-torn state of Jammu and Kashmir. This too has drawn protests from Kashmir-based political parties and human rights groups.

The stringent clauses cover a broad range, including a redefinition of terrorism, harsh punishment extending from five years’ imprisonment to life sentence or death, long periods of detention, and presumption of guilt in case weapons are recovered from an accused person.

The new definition now includes acts done with the intent to threaten or "likely" to threaten the unity, integrity, security or sovereignty of India, and offences related to radioactive or nuclear substances, and even attempts to overawe, kidnap or abduct constitutional and other functionaries that may be listed by the government.

Under the Act, an accused can be held in police custody for 30 days, and further detained without charges for 180 days, although courts can restrict the period to 90 days.

Under the Act, there is a general obligation to disclose any information that a police officer of a certain rank thinks is relevant to the investigation. Failure to disclose information can lead to imprisonment for three years. Journalists are not exempt from this.

Besides making telecommunications and e-mail intercepts admissible as evidence, the Act also denies bail to all foreign nationals, and mandates a refusal of bail to anyone if a prima facie case exists, which is decided on the basis of a First Information Report filed by the police.

Human rights activists speak out

Civil liberties activists and public-spirited citizens are appalled at the new laws, which they describe as draconian and excessive in relation to the measures India really needs to take to fight terrorism.

"The UAPA Act is particularly vile, and will have the effect of turning India into a virtual police state," says Colin Gonsalves, executive director of the Delhi-based Human Rights Law Network. "It basically brings back a discredited law, the Prevention of Terrorism Act of 2002 (POTA), except for admitting confessions made to a police officer as legal evidence."

"This is a travesty of constitutional rights and the rule of law," says Gonsalves. "Even worse is the presumption of guilt in case there is a recovery of arms, explosives and other substances, suspected to be involved, including fingerprints on them. The police in India routinely plants such arms and explosives, and creates a false record of recovery."

"The very fact that offences such as organising terrorist training camps or recruiting or harbouring terrorists carry a punishment as broad as three or five years to life imprisonment shows that the government has not applied its mind to the issue,” Gonsalves added.

The London-based human rights group called on India's president not to approve the legislation, which would double the number of days police can detain terror suspects before filing charges, from 90 days to 180, as well as boost their powers to conduct searches.

"While we utterly condemn the attacks and recognise that the Indian authorities have a right and duty to take effective measures to ensure the security of the population, security concerns should never be used to jeopardise people's human rights," Madhu Malhotra, Asia Pacific Programme Deputy Director at Amnesty International, said in a statement.

In particular, Amnesty raised concerns about the sweeping definition of terrorism, extending the detention of suspects by up to 180 days, denying bail to foreigners who enter the country illegally, and the requirements, in certain circumstances, for the accused to prove their innocence.

"India's experience with previous anti-terrorism laws has shown that they can lead to abusive practices," Amnesty said.

The most contentious change is the doubling of the duration of police custody from 15 to 30 days. This, to social activist Ram Puniyani, “only means more time for torture”.

Many believe that the amendments are only legitimising illegal detentions. S.A.R. Geelani, the Delhi University lecturer accused under POTA of masterminding the Parliament attacks and acquitted after four years, says, “Longer custody would not be a problem if the police did not violate human rights with alarming regularity.” He says the mandatory medical examination he had to undergo every 48 hours in custody was always fabricated. “The policeman would take me to hospital and dictate to the medical officer: ‘heart rate normal, no visible sign of torture’. If the lawyer of the accused wants to be present, he is usually not allowed.”

TADA and POTA experiences

POTA and its predecessor, Terrorist and Disruptive Activities (Prevention) Act (TADA), were extensively abused. They typically targeted the religious minorities, specifically Muslims, and allowed for their harassment and persecution.

POTA was an extremely unpopular law, which the UPA government abrogated upon coming to power in 2004 in response to innumerable complaints of its selective and discriminatory use against India's Muslim minority, and its cavalier and irresponsible application to offences not even remotely connected with terrorism.

While rescinding POTA, the UPA kept in place all of India's criminal laws, which are much stricter than those in many democracies.

In addition, it also enacted an amendment to the Unlawful Activities Act, 1967, which increased punishment for committing acts of terrorism and for harbouring terrorists or financing them, enhanced police powers of seizures, made communications intercepts admissible as evidence, and increased the period of detention without charges to 90 days from the existing 30 days.

The TADA story is especially horrifying. Some 67,000 people were arrested under it, but only 8,000 put on trial, and a mere 725 convicted.

Official TADA Review Committees themselves found the law’s application untenable in all but 5,000 cases. In 1993, Gujarat witnessed no terrorism, but more than 19,000 people were still arrested under TADA.

Religious minorities were selectively targeted under both Acts. For instance, in Rajasthan, of 115 TADA detainees, 112 were Muslims and three Sikhs.

Gujarat had a worse pattern under POTA, when all but one of the 200-plus detainees were Muslims, the remaining one a Sikh.

Further alienating Muslims

The passing of the two new laws is certain to increase the alienation of India's Muslims from the state. They have been the principal victims of India's anti-terrorism strategy and activities in recent years.

Muslims are first to be arrested and interrogated after any terrorist incident, even when the victims are Muslims, and although strong evidence has recently emerged of a well-ramified pro-Hindu terrorist network, in which serving and retired army officers were found to be key players.

Muslims also distressed at the alacrity and haste with which the new laws were passed, especially since it contrasts with the UPA government’s failure to enact a law it promised five years ago to punish communal violence and hate crimes targeting specific religious groups.

"This will pave the way for more disaffection amongst Muslims and make the social and political climate more conducive to terrorism," argues Gonsalves. "Even worse, it will promote excesses of the kind associated with state terrorism. And that is no way to fight sub-state terrorism."